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E-T6ll0-31 E-T6lt0-21 E-T6tr0-R9 E-T6n0-26 E-T6^0-27 EFTA Surveillance Authority Attn: Mr Xavier Lewis. Ms Florence Simonetti. Ms Fiona Cloarec Rue Belliard 35 BE-1040 Brussels E-r6t10-33 Luxembour g, 28 J anuary 201 | Dear SirAvladam. Case E-16/10 - PhiW Mowis Norway AS v Staten v/Ilelse- og omsorgsdepartementet The time-limit for the submission of written observations provided for in Article 20 of the Statute of the EFTA Court has expired. The Court has received and registered written observations from the following: Reg. number Philip Morris Norway AS E-t6l10-23 Staten v/Helse- og omsorgsdepartementet E-t6ll0-31 Government of Finland E-t6lt0-21 Government of Iceland E-t6/10-21 Government of Portueal E-t6tr0-r9 Govemment of Romama E-r6l10-32 Govemment of the United Kinedom E-t6n0-26 European Surveillance Authority E-t6^0-27 European Commission E-16/10-1 1 Please find enclosed a copy of the written observations listed above. Yours faithfully, Skrili Magnrisson Registrar Encl. l, rue du Fort Thiingen,L-1499 Luxembourg. Telephone: +352 42 108-1. Telefax: +352 43 43 89 E-mail: [email protected] ofil.o Advokatfirnraot Schio(lt nA - Org.no.: 983 490 7 SiTAVANGTJfI Dronning Mauds gt. 1{ P.O.Box 2444 SoUi NO-oi Bt]RGE:N Oslo Norway Al"r{iuNf) Phone: +47 22 01 88 00 Fax: +47 2283 17 12 SrilJSSgt_ SCHTODT Member of the Norwegian Bar Association www.tichi0rJt, no ,r... *.ri,'1'lr ;'1,::rrl -Zf Re lI i,,tr,r.r', rr!.t{f,el. 1u1" ".f;lflfu ",,""...?*.., , llr . fc,:::1,.. ,,"" 2o!r-\ " v " d cERTI F/E"o coPY lL'ryt-/ -/ TO THE PRESIDENT AND MEMBERS OF THE EFTA COURT WRITTEN OBSERVATIONS submitted, pursuant to Article g7 of the Rules of Procedure and Article 20 of the statute of the EFTA Court, by Philip Morris Norway AS represented by advokat Peter Dyrberg (of the Danish Bar), advokat Jan Magne Juuhl-Langseth (of the Nonruegian Bar), and avocat Michel Petite (of the Paris Bar), in Case E-16/10 Philip Morris Norway AS Staten v/ Helse- og Omsorgsdepartementet in which Oslo tingrett ('Oslo City Court') has requested a ruling pursuant to Article 34 of the Agreemertt between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice regarding the interpretation of the Agreement on the European Economic Area (the 'EEA Aq;reement'). 1 555650_1 TABLE OF CONTENTS t. TNTRODUCTION ..'......""' 4 A. Tur FtnsrQuEsrloN """'4 5 B. THE SEcoND Questtott """"""""""" il. NATIONAL LAW, FACTS AND MAIN PROCEED|NGS......'..'.." .""""""""""' 6 6 A. ELEMENTS oF LAW """"" 8 B. Euvrrurs oF FAcrs """" 10 C. MAIN PRocEEDINGsAND Qugsrtons """""""""" L1 ilt. THE FIRST QUESTION - RESTR|CTION................' ."""""""' A. ToTnI novTnIs|NG AND DISPLAY BANS ARE INHERENTLY DISCRIMINATORY AND THUS PER SE RESTRICTIONS OF 1-]- FREE MOVEMENT WITHIN THE MEANING OF ARTICLE 1"1 EEA....."' ".."" (a) Article 11 EEA Prohibits Measures that Are Capable of Restricting Free Movement.......'. 11 (b) lnherently Discriminatory Measures """'12 (c) Display bans and discrimination..'.'.'........ """"""""" L6 (d) The ban on Internet display is discriminatory'........... """""""""' 17 18 B. THE DISPLAY BAN Is A REsTRIcTtoN oN FREE MOVEMENT BECAUSE IT HINDERS MARKET ACCESS. ...'.....'.......' (a) National measures that hinder market access of products from other EEA States constitute a restriction on free movement of goods within the meaning of Article 11'......'...'.... 18 (b) Display bans hinder market access. """"2L C. CoNcLUsroN oNTHE FtnsrQursrtoN ................ """""""""""22 lv. THE SECOND QUESTION -JUSTIFICATION ............ ."""""'23 A. THE GutDANcE To BE clvEN To rHE NATIoNAL Counr """"""""23 B. THE FUNDAMENTALS OF THE JUSTIFICATION ASSESSMENT '.........,.23 C. CNTERIR FOR PROPORTIONALITY ASSESSMENT. .......'27 (a) Criteria for Suitability ...'.....'.".' """""""' 28 (b) lnsuffipi of evidence adduced by the State.......... .'.'......"""" 30 D. CRrrrRtR FoR NEcEsstrY................. .'.-.'.......'........42 (a) Obligation to examine less restrictive measures .........'....... .........42 (b) Less restrictive measures to reduce consumption of tobacco products ........' 44 (c) The extremity of the Norwegian ban .....'.....' ."........'.51 (d) The WHO Framework Convention E. Coruclusroru oN THE SEcoND Qurslolt.... '.........'. 55 INTRODUCTION products at the 1. This Case concerns the lawfulness of a ban on display of tobacco point of sale. to a 2. The referring court has asked the EFTA Court (i) whether the ban amounts measure with equivalent effect to a quantitative restriction on the free movement deciding of goods under Article 11 EEA; and, if yes, (ii) what are the criteria for whether the ban is justified and proportionate under Article 13 EEA' A. The First Question display ban Nonruay has long banned tobacco advertisement and promotion; the goes even further, effectively foreclosing the only remaining means of market entry for imported brands not already familiar to local customers' submits that, under 4. Philip Morris Noruvay AS, the Plaintiff in the main proceedings, the attached the case law, the restriction on free movement is plain: as stated in of Justice of opinion of sir Francis Jacobs, former Advocate General of the court reality, and the European Union, 'ff seems clear both in law and in commercial prohibition of the indeed as a matter of togic and common sense, that a general a serious visibte disptay of goods at the point of sa/e is a restriction - indeed restriction - on the free movement of goods.'l to the Annex 1: Jacobs' Opinion on the questions which have been referred EFTACourtbytheosloCityCourt,datedl4January2oll. per restrictions on 5. First, under settled case law, complete advertising bans are se more the free movement of goods. such bans are inherently discriminatory, are detrimental to imported than to domestic brands with which local customers per se already familiar. lf, as the case law establishes, advertising bans are violations of free movement, then the violation is only clearer here: Noruvay or prohibits not only all advertising and promotion, but also even the mere display inspection of the product at the point of sale' t At paragraph 8 of Jacobs' Opinion. o. Second, recent cases make clear that a measure that hinders market access for imported products is a restriction on the free movement of goods. A display ban, coming on top of a complete advertising ban, is such a measure because it imposes an insurmountable obstacle to any foreign manufacturer hoping to enter the Noruvegian market. With no way to communicate their brands to the local customers, manufacturers from other States will be severely hindered in even getting the existence of their products known, let alone in competing effectively with already established local brands. 7. Finally, the ban constitutes a restriction in another distinct respect: the new law prohibits Internet tobacconists from displaying tobacco products on their access- controlled websites, while permitting local tobacconists to display such products in their local brick-and-mortar shops. The case law makes clear that a law banning display by specialist Internet sites, while permitting display by local specialist shops, is discriminatory towards imported products and constitutes a restriction on trade under Article 11. 8. The Plaintiff submits that the first question should be answered in the affirmative. A negative answer would, in the words of Mr. Jacobs, be 'contrary to common sense'and, indeed, 'verge on the absurd. lt is contrary to the very structure and system of the EEA Agreement and of the EIJ Treaty.'2 B. The Second Question o The Noruvegian State seeks to justify the display ban on grounds of public health. The referring Court has requested guidance as to the criteria for assessing the suitability and necessity of the display ban under Article 13 EEA. 10. This Court should make clear that, under settled law, the referring court must determine - and the State must carry its burden of proving - (i) that the measure actually achieves its purported health goals, r.e., that a display ban actually reduces conSumption of tobacco, and that such effects (if any) are not outweighed by the known adverse effects of tobacco trade restrictions (such as increasing illicit trade); and (ii) that the positive effects of the measure (if any) cannot be achieved through other measures less restrictive of EEA trade. 2 At paragraph 17 of Jacobs'Opinion. submits that 11. The State has offered no such evidence on suitability to date. Plaintiff where, as here, the experience of other States already demonstrates that tobacco nor display bans have no effect on consumption, such a ban is neither'suitable' 'necessary' to reducing the consumption of tobacco products; in any event, this of Court should make clear that it is the State's burden to overcome the weight its claims; contrary evidence with substantial scientific evidence in support of justified based on restrictions on trade already shown to be ineffective cannot be mere hope or sPeculation. To the 12. Nor has the State met its burden with respect to 'less restrictive measures.' efficacy of contrary, the Noruvegian authorities have repeatedly acknowledged the enforcing less restrictive alternatives, such as tobacco retail licensing and actually performance the ban on underage tobacco sales. Norway has one of the worst records on enforcement of minimum age laws in Europe: retail sales of tobacco products to youth are rampant. Yet Norway has repeatedly ignored the recommendations from its own health officials to adopt measures to enforce prove, and ban on such sales. This Court should make clear that the State must effective the referring court must determine, that such measures would not be as products' (Plaintiff as a display ban in reducing youth consumption of tobacco because the submits that the State cannof meet its burden, and seeks to evade it, do empirical evidence already establishes that retail licensing requirements reduce youth consumption and that display bans do not') II. NATIONAL LAW, FACTS AND MAIN PROCEEDINGS A. Elements of law products 44, Ban on all advertising: Nonrvay has banned all advertising of tobacco of all for over a quarter century.
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